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Copyright protection is granted under U.S. Const. art. I, § 8, cl. 8, but only for limited times. The inclusion of this caveat in the Constitution makes manifest the right of society to ultimately claim free access to materials which may prove essential to the growth of the society. The copyright clause, however, does not impinge on the right of privacy of a creator. An author who refrains from publication and uses his work for his own pleasure may enjoy the common law copyright protection in perpetuity. Once a work is published, however, the Constitution dictates that the time for which the statutory copyright protection is accorded starts to run. An author is not allowed to publish a work and then after a period of time has elapsed choose to invoke statutory copyright protection. If the statutory protection is not acquired at the time of publication by appropriate notice, the work is lost to the public domain. Any other rule would permit avoidance of the "limited times" provision of the Constitution.
Defendant Public Building Commission of Chicago asked a famous artist to design a sculpture for a civic center. The artist made a model of the sculpture and gifted it to the city on behalf of the public. Defendant publicized the sculpture and, inter alia, placed the model on public exhibition, but without any copyright notice being affixed thereto, and photographs of the model were published in the media. When the completed sculpture was unveiled, it bore a copyright notice, but press release photographs bore no such notice. A few months later, a copyright registration was issued. Desiring to market a copy of the sculpture, Plaintiff Letter Edged in Black Press, Inc. sued defendant for a declaratory judgment that the copyright was invalid under 17 U.S.C.S. § 8. Both parties moved for summary judgment.
Under the circumstances, was the defendant’s copyright invalid, thereby warranting the grant of summary judgment in favor of the plaintiff?
In granting summary judgment to plaintiff, the court ruled that the model was a tangible work that qualified for copyright protection and defendant's failure to affix notices on its models and photographs, as required by 17 U.S.C.S. § 10, had the effect of terminating the common law copyright of the model and any copies thereof, including the completed sculpture, thus placing them into the public domain.